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As filed with the Securities and Exchange Commission on May 7, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
HEALTH SYSTEMS DESIGN CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 94-3235734
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1330 Broadway, Oakland, CA 94612
(Address of Principal Executive Offices)
HEALTH SYSTEMS DESIGN CORPORATION
1996 OMNIBUS EQUITY INCENTIVE PLAN
(Full Title of the Plans)
Richard C. Auger
Chief Executive Officer
Health Systems Design Corporation
1330 Broadway
Oakland, CA 94612
(510) 763-2629
(Name, address and telephone number of agent for service)
Copies to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe
400 Sansome Street
San Francisco, CA 94111
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share* Price* Fee*
- --------------------------------------------------------------------------------
Common Stock, 400,000 shares $6.1875 $2,475,000 $750.00
and Options to
Purchase Common
Stock
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
* Estimated solely for the purpose of calculating the registration fee on the
basis of $6.1875 per share, the average of the high and low prices for the
Common Stock on May 6, 1997 as reported by NASDAQ.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) the latest annual report of Health Systems Design Corporation
(the "Company") filed pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); (ii) all other reports
filed by the Company pursuant to Sections 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the Company's latest annual report;
and (iii) the description of the Company's common stock set forth in the
Company's Registration Statement on Form 8-A relating thereto, including any
amendment or report filed for the purpose of updating such description. All
documents filed by the Company after the date of this registration statement
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment (that indicates all securities offered
have been sold or deregisters all securities then remaining unsold), shall be
deemed to be incorporated by reference in this registration statement and to be
a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Sixth, Section 2 of the Company's Certificate of Incorporation provides
that directors of the Company shall not be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, to the fullest extent permitted by the General Corporation Law of the
State of Delaware. Article Five, Section 1 of the Company's By-Laws provides
for indemnification of officers and directors to the full extent and in the
manner permitted by Delaware law. Section 145 of the Delaware General
Corporation Law makes provision for such indemnification in terms sufficiently
broad to cover officers and directors under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended.
The Company has entered into indemnification agreements with each director which
provide indemnification under certain circumstances for acts and omissions which
may not be covered by any directors' and officers' liability insurance.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 Health Systems Design Corporation 1996 Omnibus Equity Incentive Plan, as
amended (and incorporated by reference to Exhibit 10.3 to the registrant's
Registration Statement on Form S-1, Commission File No. 333-00094).
4.2 Form of Non-Qualified Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in Exhibit 5.1
to this Registration Statement.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration
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statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of the
Plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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Signatures
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Oakland, State of California on the 28th day of
April, 1997.
HEALTH SYSTEMS DESIGN CORPORATION
(Registrant)
/s/ Richard C. Auger
- ---------------------------------
Richard C. Auger
Chief Executive Officer
and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
Principal Executive Officer:
/s/ Richard C. Auger
- ----------------------------
Richard C. Auger Chief Executive April 28, 1997
and Chairman of
the Board
Principal Financial Officer
and Accounting Officer:
/s/ Steve Correia
- ----------------------------
Steve Correia Acting Chief April 28, 1997
Financial Officer
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Directors:
/s/ Richard C. Auger
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Richard C. Auger Director April 28, 1997
/s/ Catherine C. Roth
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Catherine C. Roth Director May 1, 1997
/s/ J. Matthew Mackowski
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J. Matthew Mackowski Director April 30, 1997
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Arthur M. Southam, M.D. Director _________, 1997
A majority of the members of the Board of Directors.
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EXHIBIT INDEX
4.1 Health Systems Design Corporation 1996 Omnibus Equity Incentive Plan, as
amended (and incorporated by reference to Exhibit 10.3 to the registrant's
Registration Statement on Form S-1, Commission File No. 333-00094).
4.2 Form of Non-Qualified Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in Exhibit 5.1
to this Registration Statement.
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EXHIBIT 4.1
AMENDMENT NO. 1 TO THE
HEALTH SYSTEMS DESIGN CORPORATION
1996 OMNIBUS EQUITY INCENTIVE PLAN
HEALTH SYSTEMS DESIGN CORPORATION, having adopted the Health Systems
Design Corporation 1996 Omnibus Equity Incentive Plan (the "Plan"), hereby
amends the Plan, effective as of December 26, 1996, by deleting the numeral
500,000 from the first sentence of Section 4.1 and substituting the numeral
900,000 therefor.
IN WITNESS WHEREOF, Health Systems Design Corporation, by its duly
authorized officer, has executed this Amendment No. 1 to the Plan on the date
indicated below.
HEALTH SYSTEMS DESIGN CORPORATION
Dated: April 28, 1997 By /s/ Richard C. Auger
-------------------------------
Title: Chief Executive Officer
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EXHIBIT 4.2
HEALTH SYSTEMS DESIGN CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Health Systems Design Corporation (the
"Company") hereby grants to _____________ (the "Employee") under the Health
Systems Design Corporation 1996 Omnibus Equity Incentive Plan (the "Plan"), as a
separate incentive in connection with his or her employment and not in lieu of
any salary or other compensation for his or her services, a nonqualified stock
option to purchase, on the terms and conditions set forth in this Agreement and
the Plan, all or any part of an aggregate of __________ shares of authorized
shares of the Common Stock, at the purchase price set forth in paragraph 2 of
this Agreement. The option granted hereby is not intended to be an Incentive
Stock Option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended.
2. EXERCISE PRICE. The purchase price per share (the "Option
Price") shall be $__________, which is the fair market value per share of the
Common Stock on __________, the effective date of this Agreement. The Option
Price shall be payable in the legal tender of the United States or, in the
discretion of the Committee, in shares of the Common stock of the Company or in
a combination of such legal tender and such shares.
3. NUMBER OF SHARES. The number and class of shares specified in
paragraph 1 above, and/or the Option Price, are subject to appropriate
adjustment in the event of changes in the capital stock of the Company by reason
of stock dividends, split-ups or combinations of shares, reclassifications,
mergers, consolidations, reorganizations or liquidations. Subject to any
required action of the stockholders of the Company, if the Company shall be the
surviving corporation in any merger or consolidation, the option granted
hereunder (to the extent that it is still outstanding) shall pertain to and
apply to the securities to which a holder of the same number of shares of Common
Stock that are then subject to the option would have been entitled. To the
extent that the foregoing adjustments relate to stock or securities of the
Company, such adjustments shall be made by the Committee, whose determination in
that respect shall be final, binding and conclusive.
4. COMMENCEMENT OF EXERCISABILITY. Except as otherwise provided in
this Agreement, the right to exercise the option awarded by this Agreement shall
accrue (a) as to 25% of the shares subject to such option on the day after the
third anniversary of the date of this Agreement, (b) as to an additional 25% on
the day after the fourth anniversary of this Agreement, and (c) as to the
remaining 50% on the day after the fifth anniversary of this Agreement.
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5. TERMINATION OF OPTION. In the event of termination of the
Employee's employment with the Company or a Subsidiary for any reason, the
Employee may, within three (3) months after the date of such termination or
within six (6) years from the date of this Agreement, whichever shall first
occur, exercise the option to the extent the right to exercise the option had
accrued as of the date of such termination. In the event the Employee shall
die within such three (3) month period, the option may be exercised by the
Employee's transferee, as hereinafter provided, to the same extent that the
right to exercise the option had accrued immediately prior to the Employee's
death, for a period of three (3) months after the date of the Employee's death.
6. PERSONS ELIGIBLE TO EXERCISE. The option shall be exercisable
during the Employee's lifetime only by the Employee. The option shall be
non-transferable by the Employee other than by a beneficiary designation made in
a form and manner acceptable to the Committee, or by will or the applicable laws
of descent and distribution.
7. AFTER THE DEATH OF EMPLOYEE. To the extent exercisable after the
Employee's death, the option shall be exercised only by the Employee's
designated beneficiary or beneficiaries, or if no beneficiary survives the
Employee, by the person or persons entitled to the option under the Employee's
will, or if the Employee shall fail to make testamentary disposition of the
option, his or her legal representative. Any transferee exercising the option
must furnish the Company (a) written notice of his or her status as transferee,
(b) evidence satisfactory to the Company to establish the validity of the
transfer of the option and compliance with any laws or regulations pertaining to
said transfer, and (c) written acceptance of the terms and conditions of the
option as prescribed in this Agreement.
8. EXERCISE OF OPTION. The option may be exercised by the person
then entitled to do so as to any shares which may then be purchased (a) by
giving written notice of exercise to the Company, specifying the number of full
shares to be purchased and accompanied by full payment of the purchase price
thereof (and the amount of any income tax the Company is required by law to
withhold by reason of such exercise), and (b) by giving satisfactory assurances
in writing if requested by the Company, signed by the person exercising the
option, that the shares to be purchased upon such exercise are being purchased
for investment and not with a view to the distribution thereof.
9. SUSPENSION OF EXERCISABILITY. If at any time the Company shall
determine, in its discretion, that the listing, registration or qualification of
the shares covered by the option upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory
authority, is necessary or desirable as a condition of the
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purchase of shares hereunder, the option may not be exercised, in whole or in
part, unless and until such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Company. The Company shall make reasonable efforts to meet
the requirements of any such state or federal law or securities exchange and to
obtain any such consent or approval of any such governmental authority.
10. NO RIGHTS OF STOCKHOLDER. Neither the Employee nor any person
claiming under or through said Employee shall be or have any of the rights or
privileges of a stockholder of the Company in respect of any of the shares
issuable upon the exercise of the option, unless and until certificates
representing such shares shall have been issued, recorded on the records of the
Company or its transfer agents or registrars, and delivered to Employee.
11. OPTION HAS NO EFFECT ON EMPLOYMENT. The terms of Employee's
employment shall be determined from time to time by the Company, or the
Subsidiary employing the Employee, as the case may be, and the Company, or the
Subsidiary employing the Employee, as the case may be, shall have the right,
which is hereby expressly reserved, to terminate or change the terms of the
employment of the Employee at any time for any reason whatsoever, with or
without good cause.
12. ADDRESSES FOR NOTICES. Any notice to be given to the Company
under the terms of this Agreement shall be addressed to the Company, in care of
its Secretary, at Health Systems Design Corporation, 1330 Broadway, Oakland, CA
94612, or at such other address as the Company may hereafter designate in
writing. Any notice to be given to the Employee shall be addressed to the
Employee at the address set forth beneath the Employee's signature hereto, or at
such other address as the Employee may hereafter designate in writing. Any such
notice shall be deemed to have been duly given if and when enclosed in a
properly sealed envelope, addressed as aforesaid, registered or certified and
deposited, postage and registry fee prepaid, in a United States post office.
13. NON-TRANSFERABILITY OF OPTION. Except as otherwise herein
provided, the option herein granted and the rights and privileges conferred
hereby shall not be transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to sale
under execution, attachment or similar process. Upon any attempt to transfer,
assign, pledge, hypothecate or otherwise dispose of said option, or of any right
or privilege conferred hereby, contrary to the provisions hereof, or upon any
attempted sale under any execution, attachment or similar process upon the
rights and privileges conferred hereby, said option and the rights and
privileges conferred hereby shall immediately become null and void.
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14. MAXIMUM TERM OF OPTION. Notwithstanding any other provision of
this Agreement, this option is not exercisable after the expiration of six (6)
years and three (3) months from the date of this Agreement.
15. BINDING AGREEMENT. Subject to the limitation on the
transferability of the option contained herein, this Agreement shall be binding
upon and inure to the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.
16. PLAN GOVERNS. This Agreement is subject to all terms and
provisions of the Plan. In the event of a conflict between one or more
provisions of this Agreement and one or more provisions of the Plan, the
provisions of the Plan shall govern. Terms used in this Agreement that are not
defined in this Agreement shall have the meaning set forth in the Plan.
17. COMMITTEE AUTHORITY. The Committee shall have the power to
interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be
final and binding upon Employee, the Company and all other interested persons.
No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or
this Agreement.
18. CAPTIONS. Captions provided herein are for convenience only and
are not to serve as a basis for interpretation or construction of this
Agreement.
19. AGREEMENT SEVERABLE. In the event that any provision in this
Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement, in
duplicate, effective as of the day and year specified in paragraph 2 of this
Agreement.
Health Systems Design Corporation
By
------------------------------
Employee Signature
- ----------------------------
- ----------------------------
- ----------------------------
Address
- ----------------------------
Social Security Number
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EXHIBIT 5.1
May 7, 1997
Health Systems Design Corporation
1330 Broadway
Oakland, CA 94612
Re: Registration Statement on Form S-8/
Health Systems Design Corporation 1996
Omnibus Equity Incentive Plan, As Amended
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with the
proposed issuance pursuant to the Health Systems Design Corporation 1996 Omnibus
Equity Incentive Plan, as amended (the "Plan"), of up to 400,000 additional
shares of common stock, $0.001 par value ("Common Stock"), of Health Systems
Design Corporation, a Delaware corporation (the "Company").
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates we have
reviewed.
Based on such examination, we are of the opinion that the 400,000
additional shares of Common Stock to be issued by the Company pursuant to the
Plan are validly authorized shares of Common Stock and, when issued in
accordance with the provisions of the Plan, will be legally issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to this
Registration Statement on Form S-8 and to the use of our name wherever it
appears in said Registration Statement. In giving such consent, we do not
consider that we are "experts" within the meaning of such term as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission issued thereunder, with respect to any part
of the Registration Statement, including this opinion as an exhibit or
otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
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EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
November 8, 1996 included in Health Systems Design Corporation's Form 10-K
for the year ended September 30, 1996 and to all references to our Firm
included in this Registration Statement on Form S-8.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Oakland, California
May 5, 1997
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